Scarfo Wins New Trial 'Prosecutorial Misconduct' In Murder Case

by Kitty Caparella, Daily News Staff Writer

Posted: June 19, 1992

The Mafia beat a murder rap yesterday.

But don't look for the Lucky Eight to hit the streets soon.

A Superior Court panel said that the trial that landed eight Mafiosi, including former boss Nicodemo "Little Nicky" Scarfo, in jail for life was filled with errors. But they don't get to walk away from the charges. They get a new trial.

A three-judge panel voted 2-1 to overturn the convictions of Scarfo and seven others in the 1985 shooting death of Frank "Frankie Flowers" D'Alfonso.

Scarfo was convicted of ordering D'Alfonso killed because he didn't like his getting publicity as the mob boss when Scarfo himself was boss. D'Alfonso was not even a "made" member at the time, according to trial testimony.

"This is a major victory," said attorney Norris Gelman, who appealed on behalf of Scarfo.

"It's the first good news that Mr. Scarfo has gotten since his last acquittal," said Scarfo's longtime attorney, Robert Simone.

For the mob, it was the second big victory recently in the appellate courts. Four months ago, a Superior Court panel overturned the murder convictions of mobster Raymond "Long John" Martorano and mob associate Albert Daidone and ordered that they be retried in the 1980 murder of Roofers Union leader John McCullough.

Superior Court Judge Louis I. Cirillo wrote the opinions in both cases.

The DA's office indicated it plans to appeal.

"There is no substantial danger of them getting out," said assistant U.S. Attorney Joel Friedman, head of the Organized Crime Strike Force.

All eight of the D'Alfonso defendants had been convicted earlier on federal charges, including racketeering (RICO), and sentenced to prison for terms ranging up to 55 years for Scarfo. Joseph Ligambi drew the lightest term, 3 1/2 years for gambling.

Friedman noted that those convictions had been affirmed by the Third Circuit Court and that the U.S. Supreme Court declined to review the case.

Judge Cirillo cited prosecutorial misconduct in each of his recent reversals. His opinion yesterday also made it clear that any mention of the Mafia, its "made" members or the mob's initiation ceremony, or any name- calling by the prosecution such as calling the defendants "animals" or ''wolfpack" were grounds for a new trial.

Another key issue was whether defendant Eugene Milano, who became a government informant after the jury was selected, passed on the defense strategy to the prosecution.

Attorney Stanford Smukler, who appealed on behalf of brothers Phil and Frank Narducci, Jr., argued that when Milano decided to turn state's evidence, he was privy to the defense strategy and "everyone was affected."

The appelate court ruled the trial court erred in failing to explore whether Milano's decision affected the other defendants' rights.

The court concurred with the defense about prosecutorial misconduct, ruling it was improper to resort to "animal imagery to curry favor with the jury."

"Prosecutorial misconduct seems to arise in Philadelphia County more so than any other county in the commonwealth," the court wrote.

The prosecutor in the Scarfo case, Assistant DA Charles "Joey" Grant, was unavailable for comment.

The only two defendants who appear to have a shot at getting out soon are Ligambi, named as one of D'Alfonso's killers, and Lawrence Merlino, who became a government informant shortly after being convicted in the RICO trial.

With his life sentence overturned, Ligambi now has only his 3 1/2-year term for gambling hanging over him. And that was imposed more than 3 1/2 years ago.